Alternative Automotive, Inc. v. Mowbray

Order unanimously reversed, on the law and facts, without costs, and motion granted. Memorandum: Defendant’s motion to vacate a default judgment was denied by Special Term on constraint of Barasch v Micucci (49 NY2d 594) and Eaton v Equitable Life Assur. Soc. (56 NY2d 900). A subsequent statutory amendment restored discretion to excuse default based on law office failure (see L 1983, ch 318). The new law applies to all cases still pending before a court (Weissblum v Mostafzafan Foundation, 60 NY2d 637). The reasons for the brief default herein were excusable, and questions of fact suggesting a meritorious defense are raised by the verified answer, which may be regarded as an affidavit (CPLR 105, subd [t]). (Appeal from order of Supreme Court, Erie County, Cook, J. — vacate default judgment.) Present — Dillon, P. J., Callahan, Doerr, O’Donnell and Moule, JJ.